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Monday, November 01, 2010


I'm really excited to be here at Prawfs for the month, particularly to post on topics related to religious commercial law and, one of my favorite topics, religious arbitration.  The topic has gotten pretty hot in the blogosphere of late (check out some recent blog posts here and here) and has recently hit some maintstream press (here's Stanley Fish's take in the NYTimes and some of what was featured in The Economist). 

I suspect a lot of the recent interest comes from some bills introduced over the past year in Oklahoma, Arizona and South Carolina, which seek to remove, among other things, Sharia law from being "considered" by judges in state courts.  The proposed Oklahoma amendment - titled the "Save Our State Amendment" - will actually be put to the Oklahoma electorate tomorrow

Now it's not perfectly clear to me exactly what this Amendment would prohibit, but I'm curious what thoughts people have on the Amendment's constitutionality.  Particularly, would this Amendment pass under Employment Division v. Smith's facially neutral and generally applicable standard?  Or, would it have to be justified by demonstrating that the Amendment is narrowly tailored to advance a compelling interest?

The Amendment itself reads, in part, "The Courts . . . when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law." 

At first glance, the Amendment doesn't look like it's facially neutral - or generally applicable for that matter.  Advocates may contend that the Amendment treats all brands of non-U.S. law in the same manner - whether that law is Swiss law, French law, or Islamic law.  It does seem, however, that the Amendment's restriction on looking to the law of other states where those states include Sharia law constitutes a treatment of Sharia law different than the treatment of any other brand of law.  Any thoughts?

Posted by Michael Helfand on November 1, 2010 at 05:33 PM | Permalink


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Could Oklahoma pass a statute saying that contracts declaring that they are to be interpreted using the law of Delaware shall not be valid in Oklahoma courts? The question seems the same to me.

Posted by: Eric Rasmusen | Nov 5, 2010 10:32:00 PM

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